Aaron Joshua v. Don Dewitt

*The Honorable William J. Haynes, Jr., United States District Judge
for the Middle District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0276P (6th Cir.)
File Name: 03a0276p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AARON JOSHUA,
Petitioner-Appellant,
v.
DON DEWITT,
Respondent-Appellee.
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No. 01-4118
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 00-00763—George C. Smith, District Judge.
Argued: January 28, 2003
Decided and Filed: August 7, 2003
Before: NELSON and CLAY, Circuit Judges; HAYNES,
District Judge.*
_________________
COUNSEL
ARGUED: Siobhan R. Clovis, PUBLIC DEFENDER’S
OFFICE, Columbus, Ohio, for Appellant. M. Scott Criss,
2 Joshua v. DeWitt No. 01-4118
O F F I C E OF THE ATTORNEY G E N E R A L,
CORRECTIONS LITIGATION SECTION, Columbus, Ohio,
for Appellee. ON BRIEF: Siobhan R. Clovis, David H.
Bodiker, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio,
for Appellant. M. Scott Criss, OFFICE OF THE
ATTORNEY GENERAL, CORRECTIONS LITIGATION
SECTION, Columbus, Ohio, for Appellee.
HAYNES, D. J., delivered the opinion of the court. CLAY,
J. (pp. 35-40), delivered a separate concurring opinion.
NELSON, J. (pp. 41-51), delivered a separate dissenting
opinion.
_________________
OPINION
_________________
HAYNES, District Judge. Petitioner Aaron Joshua appeals
the district court’s order denying his petition for a writ of
habeas corpus to set aside his conviction of possession of
drugs by an Ohio court. Petitioner contends that he was
denied effective assistance of trial and appellate counsel in
that his trial and appellate counsel failed to challenge the
arresting officer’s reliance upon a police flyer containing
information that Petitioner was a drug courier. Petitioner
asserts that despite a clearly applicable Supreme Court
precedent, United States v. Hensley, 469 U.S. 221 (1985), the
state failed to offer any proof that the police officer who
provided the information in the police flyer had reasonable
suspicion to believe that Petitioner was involved in criminal
activity. We REVERSE the district court’s denial of the writ
and grant the writ subject to the state’s retrial of Petitioner.

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No. 01-4118 Joshua v. DeWitt 3
BACKGROUND
A. Procedural History
On March 13, 1998, the Ross County, Ohio grand jury
indicted Petitioner for one count of possession of crack
cocaine in excess of 100 grams in violation of Ohio Revised
Code (R.C.) § 2925.11. Count one included a separate
specification under R.C. § 2941.1410 that charged Petitioner
as a major drug offender. Petitioner’s trial counsel filed a
motion to suppress the fruits of the search conducted by state
highway troopers, which yielded 100 grams of cocaine and
the passenger’s statement that implicated Petitioner’s guilt.
Petitioner’s counsel asserted, in essence, that the length of the
traffic stop alone violated Petitioner’s Fourth Amendment
rights under the United States Constitution. The state trial
court denied the motion to suppress and Petitioner entered a
plea of nolo contendere. The state trial court sentenced
Petitioner to ten years in prison.
Petitioner filed a timely direct appeal with the Ohio Court
of Appeals, asserting four claims of error, including that the
state trial court erred in denying Petitioner’s suppression
motion because Petitioner’s stop was unconstitutional by
virtue of its duration, i.e., forty-two minutes. The Ohio Court
of Appeals affirmed the state trial court’s denial of
Petitioner’s motion to suppress and Petitioner’s conviction.
Petitioner then filed an application with the Ohio Court of
Appeals to reopen his direct appeal, arguing, in sum: (1) that
the trial court erred because the state failed to establish the
factual predicate for the dispatch that led to Petitioner’s
further detention and (2) that his counsel was ineffective for
failing to pursue this deficiency in the state’s case in the post-
hearing briefs and on appeal. On January 11, 2000, the Ohio
Court of Appeals denied Petitioner’s application to reopen,
but with a statement of its reasons. In a word, the Ohio Court
of Appeals concluded that Petitioner’s counsel "implicitly
raised the issue of whether the dispatch justified the
4 Joshua v. DeWitt No. 01-4118
1Due to a videotape of Petitioner’s detention and arrest, the precise
timing of events was preserved.
detention," J.A. at 104, but did not discuss Hensley. The
Ohio Court of Appeals also ruled that independent grounds
existed to justify Petitioner’s detention that resulted in the
discovery of the drugs. Petitioner then filed a timely appeal
to the Ohio Supreme Court, contending that the Ohio Court
of Appeals misconstrued or ignored Petitioner’s claim that
Petitioner’s appellate counsel was ineffective. On May 3,
2000, the Ohio Supreme Court dismissed the appeal for want
of a substantial constitutional question.
On July 5, 2000, Petitioner filed his petition for writ of
habeas corpus in district court, asserting that both his trial and
appellate counsel were ineffective for failing to challenge the
factual basis of the police flyer that the arresting officer relied
upon to conduct the investigative detention of Petitioner after
his traffic stop. The district court denied the petition for
habeas relief, but issued a certificate of appealability. In sum,
the district court held that the Ohio Court of Appeals’
application of clearly established federal law was not
objectively unreasonable in finding that Petitioner was not
denied effective assistance of trial counsel, because there
were "alternate grounds justifying [P]etitioner’s detention."
(J.A. at 172). The district court further held that the Ohio
Court of Appeals’ finding that Petitioner was not denied
effective assistance of appellate counsel was not objectively
unreasonable, because "the issue of [P]etitioner’s detention
was squarely presented for both the trial and appellate courts
to review." (J.A. at 173). The district court did not discuss
Hensley.
B. Facts
The state suppression hearing transcript reflects that on
March 2, 1998, at 11:07 a.m.1, Petitioner was traveling
southbound on State Route 104 in a rental car when Trooper

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No. 01-4118 Joshua v. DeWitt 5
James Hannon, with the Ohio Highway Patrol, executed a
traffic stop for speeding. According to Trooper Hannon, his
radar revealed that Petitioner was traveling sixty-seven miles
per hour in a fifty-five mile per hour speed zone. Petitioner
was traveling from Columbus to Portsmouth, Ohio, and was
accompanied by Gabriella Chapman and her infant child. As
Trooper Hannon approached the vehicle, he noticed that
Petitioner and Chapman were acting nervous and suspicious.
Trooper Hannon asked Petitioner for "his license, registration
and proof of insurance." (J.A. at 150). Petitioner gave
Trooper Hannon his driver’s license and rental car papers.
Prior to returning to his patrol car to conduct a status check of
Petitioner’s driver’s license, Trooper Hannon questioned
Petitioner about his travel plans. Trooper Hannon’s suspicion
increased when Petitioner described his route between
Columbus and Portsmouth, because, according to Trooper
Hannon, the route described by Petitioner "didn’t make any
sense what so ever." (J.A. at 151).
At 11:10 a.m., Trooper Hannon returned to his patrol car to
run a status check on Petitioner’s driver’s license and to
determine if there were any outstanding warrants against
Petitioner. A dispatcher informed Trooper Hannon that
Petitioner did not have any outstanding warrants. Another
Trooper, Terrell Barnes, overheard the exchange between the
dispatcher and Trooper Hannon, and directed the dispatcher’s
attention to an entry in the station’s "Read and Sign" book.
(J.A. at 145).
This "Read & Sign" book contains police intelligence
information. As to Petitioner, the "Read and Sign" book
reflected an entry from a Columbus Police Department report
that Petitioner was a known drug courier who transported
illegal narcotics between Columbus and Portsmouth. The
dispatcher then relayed this information to Trooper Hannon
and, as a result, Trooper Hannon advised the dispatcher to
send a canine unit to the scene. The dispatcher attempted
immediately to contact a canine unit in the area. In the
interim, Trooper Hannon decided that Petitioner was not free
6 Joshua v. DeWitt No. 01-4118
to leave based upon the information from the "Read & Sign"
book. When asked at the suppression hearing whether he
could verify the information in the "Read & Sign" book,
Trooper Barnes answered, "No. No." (J.A. at 148).
At 11:15 a.m., the dispatcher called the Columbus Police
Department to determine if Petitioner had any outstanding
warrants, and was informed that Petitioner did not. At 11:17
a.m., Trooper Barnes arrived at the scene and, at this time,
Trooper Hannon observed Petitioner and Chapman being
nervous and restless. After he was informed that Petitioner
was a known drug courier, Trooper Hannon examined the
rental car papers and discovered that the rental car papers did
not match the vehicle that Petitioner occupied. At 11:20 a.m.,
Trooper Hannon asked the dispatcher to contact Enterprise
rental car company to determine if Petitioner were in lawful
possession of the rental vehicle. By 11:22 a.m., Trooper
Hannon learned that Enterprise reported Petitioner to be in
lawful possession of the vehicle, but Trooper Hannon decided
to detain Petitioner until the canine unit arrived at the scene.
At 11:25 a.m., the dispatcher reached the first available
canine unit in the area.
At 11:45 a.m., Sergeant Turner arrived at the scene and
assisted Trooper Hannon in placing stop sticks under
Petitioner’s vehicle to prevent Petitioner from driving away.
At 11:49 a.m., forty-two minutes after the initial stop,
Trooper Terry Mikesh, the canine unit handler, arrived at the
scene. Trooper Mikesh testified that it took her twenty-four
minutes to arrive at the scene due to traffic. While at the
scene, the patrol canine alerted on the right seam of the
vehicle’s passenger door. Thereafter, the officers conducted
a pat-down of Chapman, the passenger, for weapons and
illegal narcotics and discovered a large quantity of crack
cocaine concealed under her clothing. After the search,
Chapman stated that she was carrying the drugs for Petitioner,
and as a result, the officers placed Petitioner under arrest for
possessing more than 100 grams of crack cocaine in violation
of R.C. § 2925.11.

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No. 01-4118 Joshua v. DeWitt 7
DISCUSSION
A. Standard of Review
We review a district court’s denial of a writ for habeas
relief de novo because the district court’s decision was based
solely upon the record. See Wolfe v. Brigano, 232 F.3d 499,
501 (6th Cir. 2001). A state court’s findings of fact are
presumed to be correct and may only be rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). Whether
Petitioner was denied his right to effective assistance of
counsel "is a mixed question of law and fact that we review
de novo." Hunt v. Mitchell, 261 F.3d 575, 580 (2001) (citing
Olden v. United States, 224 F.3d 561, 565 (6th Cir. 2000)).
The controlling principle is "to apply a rule of law that was
clearly established at the time Petitioner’s state court
conviction became final." Williams v. Taylor, 529 U.S. 362,
390 (2000). The relevant date here is May 3, 2000, when the
Ohio Supreme Court denied Petitioner’s motion to reopen the
Ohio Court of Appeals’ decision.
Petitioner filed his habeas petition after April 4, 1996, and
therefore, the provisions of the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA") apply. Lindh v.
Murphy, 521 U.S. 320, 336 (1997). Under the AEDPA,
federal courts may not grant habeas relief for claims
adjudicated on their merits in a state court proceeding, unless
that state court proceeding:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
8 Joshua v. DeWitt No. 01-4118
In Williams, the Supreme Court stated that a state court
judgment is "contrary to" clearly established federal law "if
the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court on
a set of materially indistinguishable facts." 529 U.S. at 412-
13. In such instances, the Supreme Court held that a federal
habeas court may grant a writ. Id.
Moreover, the Supreme Court stated that under the
"unreasonable application" clause, a state court judgment
results in an "unreasonable application" of clearly established
federal law "if the state court identifies the correct governing
legal rule from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the
prisoner’s case." Id. at 413. Yet, the Supreme Court
explained that a state court’s application of clearly established
federal law must be "objectively unreasonable," and a federal
habeas court may not grant habeas relief "simply because that
court concludes in its independent judgment that the relevant
decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be
unreasonable." Id. at 410-11. A state court’s application of
federal law is unreasonable and habeas relief may be granted
if the "state court decision is so clearly incorrect that it would
not be debatable among reasonable jurists." Herbert v. Billy,
160 F.3d 1131, 1135 (6th Cir. 1998) (quoting Drinkard v.
Johnson, 97 F.3d 751, 769 (5th Cir. 1996)).
Under Williams, we must initially review the state court
decision as we find it. Under 28 U.S.C. § 2254(e)(1), we
must accord a presumption to any "determination of a factual
issue made by a state court.” Our standard of review does not
permit us to speculate here as to what the state trial court may
have done if an objection expressly citing and arguing
Hensley had, in fact, been made nor can we speculate as to
what the additional proof, if any, would have been, if the state
prosecutor had attempted to comply with Hensley.

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No. 01-4118 Joshua v. DeWitt 9
B. Petitioner’s Ineffective Assistance of Counsel Claims
Under the Sixth Amendment of the United States
Constitution, "[i]t has long been recognized that the right to
counsel is the right to effective assistance of counsel."
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). The
right to effective assistance of counsel exists "to protect the
fundamental right to a fair trial." Strickland v. Washington,
466 U.S. 668, 684 (1984). In Strickland, the Supreme Court
formulated a two-pronged test when examining an ineffective
assistance of counsel claim. Id. at 691. Under the first prong,
a petitioner must "show that counsel’s representation fell
below an objective standard of reasonableness." Id. at 687.
In a word, counsel’s performance must have been so deficient
that counsel was not functioning as the "counsel" guaranteed
the defendant by the Sixth Amendment. Id.
In determining whether counsel’s performance fell below
an objective standard of reasonableness, a reviewing court
"must not indulge in hindsight, but must evaluate the
reasonableness of counsel’s performance within the context
of the circumstances at the time of the alleged errors."
Strickland, 466 U.S. at 689-90. To be sure, there is "a strong
presumption that counsel's conduct falls within the wide range
of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered
sound trial strategy.’" Id. at 689 (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)). Thus, a reviewing court must make
every effort "to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time.’" Strickland, 466 U.S. at 689.
Counsel’s deficient performance alone, however, is
insufficient to grant relief on a claim for ineffective assistance
of counsel. Strickland’s second prong requires that counsel’s
deficiency actually caused prejudice to Petitioner. For
Strickland’s second prong, Petitioner must demonstrate that
10 Joshua v. DeWitt No. 01-4118
"there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different." Id. at 694. "A reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Id.
In Kimmelman v. Morrison, 477 U.S. 365, 375 (1986), the
Supreme Court held as an exception to Stone v. Powell, 428
U.S. 465 (1976), that a claim of ineffective assistance of
counsel can permissibly include a claim that trial counsel
failed to litigate competently an issue under the Fourth
Amendment. To obtain habeas relief, the Supreme Court
stated that "[t]he [petitioner] must also prove that his Fourth
Amendment claim is meritorious and that there is a
reasonable probability that the verdict would have been
different absent the excludable evidence in order to
demonstrate actual prejudice" under Strickland’s second
prong. 477 U.S. at 375. The Supreme Court further
explained that the Fourth and Sixth Amendment claims have
"separate identities and reflect different constitutional values,"
and therefore must be analyzed separately. Id.
1. Deficient Performance of Trial Counsel Under
Strickland
As to Strickland’s first prong, Petitioner contends that his
trial counsel’s performance fell below the standard of
reasonableness because trial counsel failed to challenge
Petitioner’s contention that the state did not prove the factual
basis for the "Read & Sign" information relied upon by
Trooper Hannon to detain Petitioner, nor did trial counsel cite
this deficiency in his post-hearing briefs or on direct appeal.
The crux of Petitioner’s argument is that the prosecutor failed
to establish a factual predicate for Trooper Hannon’s reliance
on information in the "Read & Sign" book that was necessary
to support Petitioner’s continued detention. In support of his
claim, Petitioner relies upon Hensley, 469 U.S. at 232.

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No. 01-4118 Joshua v. DeWitt 11
In Hensley, on December 4, 1981, two armed men robbed
a tavern in St. Bernard, Ohio, a Cincinnati suburb. Id. at 223.
A few days later, a St. Bernard police officer spoke with an
informant who told the officer that Thomas Hensley had
driven the getaway vehicle during the robbery. Id. The
informant prepared a written statement to this effect and, as
a result, the St. Bernard officer "immediately issued a ‘wanted
flyer’ to other police departments in the Cincinnati
metropolitan area." Id. The flyer listed the date and location
of the robbery and cautioned that Hensley was armed and
dangerous. Id. The flyer also stated "that Hensley was
wanted for investigation of an aggravated robbery." Id.
Finally, the flyer gave a description of Hensley, and requested
"other [police] departments to pick up and hold Hensley for
the St. Bernard police" department. Id.
On December 10, 1991, the Covington Police Department
headquarters, in another suburb of Cincinnati, received the
"wanted flyer" and "read [the flyer] aloud at each change of
shift." Id. A few of the Covington police officers were
familiar with Hensley and looked periodically for him where
"he was known to frequent." Id. On December 15, 1991, a
Covington police officer observed Hensley driving a vehicle
that was stopped in the middle of the street. Id. at 223-24.
This officer instructed Hensley to move on, and as Hensley
drove off, the officer contacted the dispatcher to determine if
there were any outstanding warrants for Hensley. Id. at 224.
Before the dispatcher answered, two other Covington police
officers relayed "that there might be an Ohio robbery warrant
outstanding on Hensley." Id.
While the dispatcher verified whether Hensley had any
outstanding warrants, two of the Covington police officers
drove around in areas where Hensley stayed in an attempt to
locate him. Id. At some point, one of the Covington police
officers observed a white vehicle in one of these areas and
approached the vehicle "with his service revolver drawn and
pointed into the air." Id. This officer instructed Hensley and
the passenger to step out of the vehicle, and shortly thereafter
12 Joshua v. DeWitt No. 01-4118
a second officer arrived at the scene. Id. The second officer
approached the passenger door and "observed the butt of a
revolver protruding from underneath the passenger’s seat."
Id. The passenger was arrested, and the officers searched the
vehicle and discovered two other handguns. Id. at 225. The
officers then arrested Hensley. Id.
Hensley was eventually indicted for possession of a firearm
as a convicted felon. Id. Hensley moved to suppress the
handguns obtained pursuant to the search, arguing that his
initial stop violated the Fourth Amendment. Id. The district
court denied Hensley’s motion to suppress, and after
conducting a bench trial, the district court convicted Hensley.
Id. This Court reversed the conviction, holding that because
the Covington police were unaware of the ongoing crime that
led to the issuance of the flyer, they lacked reasonable
suspicion to stop Hensley and perform an investigative
detention as permitted under Terry v. Ohio, 392 U.S. 1
(1968). Hensley, 469 U.S. at 224. The Supreme Court
reversed.
The Supreme Court held that for a past crime, reliance upon
a flyer or bulletin could justify "a stop to check identification,
to pose questions to the person, or to detain the person briefly
while attempting to obtain further information," but only if
the officer who issued the flyer or bulletin had "articulable
facts supporting a reasonable suspicion that the person wanted
ha[d] committed an offense . . . ." Id. at 232 (citations
omitted). The Supreme Court explained that when an officer
objectively relied upon a flyer or bulletin to conduct a Terry
stop, "the evidence uncovered in the course of the stop is
admissible if the police who issued the flyer or bulletin
possessed a reasonable suspicion justifying the stop . . . ." Id.
at 233 (emphasis added in the original and added in part).
Similarly, for an actual arrest, the Supreme Court also held
that "when evidence is uncovered during a search incident to
an arrest in reliance merely on a flyer or bulletin, its
admissibility turns on whether the officers who issued the
flyer possessed probable cause to make the arrest." Id. at 231

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No. 01-4118 Joshua v. DeWitt 13
(emphasis in the original). In either instance, the Supreme
Court explained that "[i]t does not turn on whether those
relying on the flyer were themselves aware of the specific
facts which led their colleagues to seek their assistance." Id.
at 231. The Supreme Court further explained that the stop
must not be "more intrusive than would have been permitted
the issuing department." Id. at 231 (emphasis added).
As applied here, Trooper Hannon relied upon information
from the "Read & Sign" book as the basis for his Terry stop
of Petitioner. Thus, under Hensley, the issue of whether the
evidence discovered during Petitioner’s stop is admissible
turns on whether the officer who provided the information in
the "Read & Sign" book had articulable facts supporting a
reasonable suspicion that Petitioner was involved in criminal
activity. Id. at 231.
Considering Hensley and the facts here, we conclude that
a reasonable trial attorney would have raised the Hensley
issue at trial. First, the Supreme Court decided Hensley in
1985, and at the time of Petitioner’s suppression hearing,
Hensley was, and remains, clearly established law. Second,
the specific facts here clearly give rise to a Hensley challenge.
In Hensley, the Supreme Court considered whether a "wanted
flyer" issued by a law enforcement agency that an individual
was involved in a robbery can be relied upon by other law
enforcement agencies to justify an investigative detention of
that individual. The facts in Hensley are almost identical to
the facts here in that the information from the "Read & Sign"
book issued by the Columbus Police Department that
Petitioner was a known drug courier, was relied upon by
Trooper Hannon to request a canine unit and to conduct an
investigative detention of Petitioner.
Here, at the suppression hearing, the state failed to offer
any evidence from the officer who provided the information
from the "Read & Sign" book that was relied upon by Trooper
Hannon, the arresting trooper. Thus, the prosecution failed to
comply with Hensley by failing to present proof that the
14 Joshua v. DeWitt No. 01-4118
2Even the dissent concedes that if Petitioner’s trial counsel had been
familiar with Hensley, "he p robably wo uld (and shou ld)" have raised this
contention "in connection with the motion to suppress." (Nelson, J.,
dissenting)(em phasis added). If P etitioner’s counsel should have raised
the issue presented in Hensley, this would certainly demonstrate that
counsel’s performance was, in fact, deficient under Strickland. Moreover,
in light of the fact that the state court record does not reflect that
Petitioner’s counsel even considered the issue presented in Hensley,
Petitioner’s counsel’s failure to do so canno t be seen as “a legitimate
defense tactic or strategy.” See Lyons v. Jackson, 299 F.3d 588, 598, n.15
(6th Cir. 20 02)(citing Bell v. Cone, 535 U.S. 685 (2002)) (observing in
the context of a guilty plea, that a defense counsel’s failure “to consider,
let alone notify the client of, a factor that could negate the entire bene fit
of the guilty plea is not within the range of professional norms” and “can
never be a legitimate defense tactic or strategy.”).
officer who provided the information in the "Read & Sign"
book had articulable facts to support a reasonable suspicion
that Petitioner was involved in criminal activity. Without
testimony from the officer who provided the information for
the "Read & Sign" book, the record does not support the
reasonableness of Trooper Hannon’s reliance on that report to
detain Petitioner or to use the evidence obtained from
Petitioner’s detention. Further, the State of Ohio has never
contended that there exists a justifiable basis for the "Read &
Sign." The State has certainly not argued what the nature of
the basis would be nor has it made any offers of proof
regarding the basis. Thus, the facts here are clearly
distinguishable from Hensley because the evidence is lacking
to show that the officer, who provided the information for the
"Read & Sign" book, had reasonable suspicion that Petitioner
was a drug courier.
Although we agree with Respondent that Petitioner cannot
second guess trial counsel’s strategy, there is nothing in the
record to reflect that Petitioner’s trial counsel considered and
declined to raise Hensley for strategic reasons.2 Further, we
cannot discern any strategic reason why Petitioner’s trial
counsel would decline to raise this issue.

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No. 01-4118 Joshua v. DeWitt 15
Respondent next argues that Hensley is limited to "initial
stops," but we disagree. Although the police flyer in Hensley
was used to justify an initial stop, the Supreme Court in
Hensley clearly held that its requirement expressly applies to
both Terry stops and to searches incident to lawful arrests.
469 U.S. at 231 (stating, after its holding, that “[i]t remains to
apply the two sets of principles described above to the stop
and subsequent arrest of respondent Hensley.”). We conclude
that Hensley requires any police flyer relied upon for a Terry
stop and to "further detain" an individual, must be supported
by articulable facts from the issuing officer to show
reasonable suspicion that the individual has been involved in
criminal activity. Accordingly, Respondent’s argument that
Hensley is limited to initial stops lacks merit.
Respondent next argues that the state court reasonably
applied clearly established federal law in finding that
Petitioner received effective assistance of trial counsel
because Petitioner’s counsel vigorously argued his motion to
suppress at the hearing. Further, Respondent cites the Ohio
Court of Appeals’ conclusion that factors independent of the
information in the "Read & Sign" book justified Trooper
Hannon’s reasonable suspicion.
In our view, the Ohio Court of Appeals did not consider
Hensley in either of its opinions. Second, the Ohio courts’
conclusion that other evidence existed to support a finding of
reasonable suspicion for Petitioner’s detention independent of
the information from the "Read & Sign" book, is a separate
issue from Petitioner’s claim that a reasonable trial attorney
would have raised the Hensley issue under the facts here. The
Ohio courts’ finding of independent facts to support
Petitioner’s detention relates to Strickland’s prejudice
component, not to whether Petitioner’s trial counsel’s
performance was deficient.
Given Hensley’s clear precedential authority as well as the
unique factual similarities that exist between the investigative
detention in Hensley and Petitioner’s detention, we conclude
16 Joshua v. DeWitt No. 01-4118
that a reasonable defense attorney would have raised the
Hensley issue. Therefore, we conclude that Petitioner’s trial
counsel’s performance fell below the objective standard of
reasonableness under Strickland.
2. Deficient Performance of Appellate Counsel Under
Strickland
As to Petitioner’s claim of ineffective assistance of
appellate counsel, Petitioner asserts that his appellate counsel
also failed to raise Hensley. A defendant is entitled to
effective assistance of counsel in connection with a
defendant’s first appeal of right. Evitts v. Lucey, 469 U.S.
387, 396 (1985). Yet, appellate counsel need not raise every
nonfrivolous argument on direct appeal. Jones v. Barnes, 463
U.S. 745, 751-52 (1983). To be sure, "‘winnowing out
weaker arguments on appeal and focusing on’ those more
likely to prevail, far from being evidence of incompetence, is
the hallmark of effective appellate advocacy." Smith v.
Murray, 477 U.S. 527, 536 (1986) (quoting Jones, 463 U.S.
at 751-52). Appellate counsel, however, is required to
exercise reasonable professional judgment. Jones, 463 U.S.
at 753. Nevertheless, "only when ignored issues are clearly
stronger than those presented, will the presumption of
effective assistance of [appellate] counsel be overcome."
Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002)(quoting
Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).
The Ohio Rule of Criminal Procedure 52(B) provides that
"[p]lain error or defects affecting substantial rights may be
noticed [on appeal] although they were not brought to the
attention of the [lower] court." Ohio R. Crim. P. 52(B).
Thus, Petitioner’s appellate counsel could have raised the
Hensley claim on appeal, despite trial counsel’s failure to
present the Hensley claim to the Ohio trial court. Given the
wording of Ohio Rule 52(B) as well as our conclusion that
Hensley is clearly applicable, we conclude that a reasonable
appellate counsel would have raised Hensley in Petitioner’s
first appeal. Therefore, we conclude that Petitioner’s

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No. 01-4118 Joshua v. DeWitt 17
appellate counsel’s performance fell below the objective
standard of reasonableness under Strickland.
We must next consider whether Petitioner’s counsel’s
performance prejudiced Petitioner under Strickland’s second
prong.
3. Prejudice
As to Strickland’s prejudice component, Petitioner must
show that there "is a [reasonable] probability sufficient to
undermine confidence in the outcome and the fundamental
fairness" of the trial. Strickland, 466 U.S. at 694. In
assessing this issue, we are also mindful that habeas relief
may not be granted "simply because [we] conclude[] in [our]
independent judgment that the relevant state court decision
applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be
[objectively] unreasonable." Williams, 529 U.S. at 365.
Under Hensley, without the testimony of the officer who
provided the information from the "Read & Sign" book that
was relied upon to detain Petitioner further, the trial court
could not admit the proof from the stop that resulted in
Petitioner’s arrest. Clearly, the drug courier information from
the "Read & Sign" book was the only fact justifying Trooper
Hannon’s decision to request the canine unit that resulted in
Petitioner’s extended detention. Further, the State of Ohio
has never contended that there exists a justifiable basis for the
"Read & Sign." The State has certainly not argued what the
nature of the basis would be nor has it made any offers of
proof regarding the basis. Without the objective evidence to
find reasonable suspicion giving rise to Petitioner’s continued
detention, we conclude that Hensley bars the admissibility of
the evidence seized at the scene of Petitioner’s arrest,
including the drugs and his companion’s statement. Hensley
clearly held that to admit the evidence from the stop, the
police officer who actually issued the flyer must testify as to
the specific facts underlying the report. Hensley, 469 U.S. at
18 Joshua v. DeWitt No. 01-4118
233 (“Assuming the police make a Terry stop in objective
reliance on a flyer or bulletin, we hold that evidence
uncovered in the course of the stop is admissible if the police
who issued the flyer or bulletin possessed a reasonable
suspicion justifying a stop . . . .").
In sum, the prejudice shown is that on this record, if the
defense counsel had made a Hensley challenge, there would
not be any facts to support Trooper Hannon’s detention of
Petitioner. Thus, the evidence uncovered from the stop would
have been inadmissible. Without the evidence from the stop,
there is a substantial probability that Petitioner would not
have been convicted. This prejudice satisfies Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) and Skaggs v. Parker,
235 F.3d 261 (6th Cir. 2000).
a. “Contrary To” Analysis
We next address Respondent’s argument that the Ohio
Court of Appeals’ finding of an independent basis under
Terry is sufficient to justify the trooper’s investigative
detention of Petitioner. In sum, the Ohio Court of Appeals
found that apart from the information from this "Read &
Sign" book, other factors justified the trooper’s reasonable
suspicion to detain Petitioner, namely: (1) the discrepancy in
the rental car papers; (2) the "furtive movements" made by
Petitioner and his companion during the traffic stop; (3) the
illogical route given by Petitioner regarding his travel plans;
and (4) Petitioner’s and his companion’s nervousness.
The Fourth Amendment to the United States Constitution
guarantees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures." Whren v. United States, 517 U.S. 806,
810 (1996). The Supreme Court noted that a traffic stop is
lawful, provided there is probable cause to find that a traffic
violation has occurred. Id. at 810. Yet, once the traffic stop
is completed, the occupants of the vehicle must be allowed to
leave “unless something that occurred during the traffic stop

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No. 01-4118 Joshua v. DeWitt 19
generated the necessary reasonable suspicion to justify a
further detention." United States v. Mesa, 62 F.3d 159, 162
(6th Cir. 1995).
In United States v. Sokolow, 490 U.S. 11, 12 (1989), the
Supreme Court stated that "[t]he reasonable-suspicion
standard is . . . applicable only to those brief detentions which
fall short of being full-scale searches and seizures and which
are necessitated by law enforcement exigencies such as the
need to stop ongoing crimes, to prevent imminent crimes, and
to protect law enforcement officers in highly charged
situations.” (Emphasis added). Reasonable suspicion is
based on the totality of the circumstances and must require
"articulable reasons" and "a particularized and objective basis
for suspecting the particular person . . . of criminal activity."
United States v. Cortez, 449 U.S. 411, 417-18 (1981).
In determining reasonable suspicion, "[f]irst, a court must
identify all of the relevant historical facts known to the officer
at the time of the stop and search; and second, it must decide
whether, under a standard of objective reasonableness, those
facts would give rise to a reasonable suspicion justifying a
stop or probable cause to search." Ornelas v. United States,
517 U.S. 690, 700-01 (1996). In Delaware v. Prouse, 440
U.S. 648, 661 (1978), the Supreme Court warned that "[t]o
insist neither upon an appropriate factual basis for suspicion
directed at a particular automobile nor upon some other
substantial and objective standard or rule to govern the
exercise of discretion ‘would invite intrusions upon
constitutionally guaranteed rights based on nothing more
substantial than inarticulate hunches . . . ." Id. (citing Terry,
392 U.S. at 22).
We set forth these Fourth Amendment standards because
Kimmelman clearly requires for this type of ineffective
assistance of counsel claim, that we consider the underlying
Fourth Amendment claims. Kimmelman, 477 U.S. at 375.
20 Joshua v. DeWitt No. 01-4118
3W e note that when Trooper M ikesh, the canine unit handler, arrived
at the scene and initially approached the vehicle, she observed Petitioner
"trying to hide something or [as] if [Petitioner was] going to come out
with a weap on, I don’t know." (J.A. at 160). Trooper M ikesh, however,
did not arrive at the scene until 11:49 a.m., forty-two minutes after the
initial stop. Thus, we conclude that in light of T rooper M ikesh’s late
arrival upon the scene, her observations of Petitioner (that could be
reasonably characterized as furtive moments), were not the b asis for
Trooper Hannon’s continued detention of Petitioner and his companion.
As to the first fact cited by the Ohio Court of Appeals,
Trooper Hannon conceded that within two minutes, his
inquiry revealed that Petitioner was in lawful possession of
the rental car. Yet, before Trooper Hannon made the inquiry
about the discrepancy in the rental car papers, he had already
decided to detain Petitioner and requested a canine inspection
of the rental vehicle. In a word, from the state court record,
the discrepancy in the rental car papers was not relied upon by
Trooper Hannon to justify Petitioner’s continued detention.
Thus, we conclude that the discrepancy of the rental car
papers was not an independent factor that could have
supported Trooper Hannon’s continued detention of
Petitioner.
As to the second fact, i.e., furtive movements, the Ohio
Court of Appeals found that "[Petitioner] and his passenger
made furtive gestures and appeared increasingly nervous as
the detention continued." (J.A. at 104-05). To justify a Terry
stop, the officer must "be able to point to specific and
articulable facts" that support reasonable suspicion. Terry,
392 U.S. at 21. The Ohio Court of Appeals’ use of the phrase
"furtive gestures" is a characterization, not an independent
fact. From our review, there is no objective evidence in this
record that would support the trooper’s opinion upon which
the Ohio Court of Appeals relied for its characterizations that
Petitioner and his companion exhibited furtive gestures. The
state trial record does not contain testimony that Petitioner or
his companion moved their bodies or arms to conceal
anything or to reach for any item.3 Further, we are unable to

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No. 01-4118 Joshua v. DeWitt 21
Therefore, Trooper M ikesh’s observation cannot be considered as those
furtive movements that the Ohio Court of Appeals relied upon as one of
the factors, apart from the "Read & Sign" boo k, to sup port its finding that
Troo per Hannon had reasonable suspicion to further detain Petitioner.
4In this regard, Trooper Hannon’s testimony at the suppression
hearing was that "[o]nce Trooper B arnes arrived [at the scene], I
witnessed nervousness and restlessness in the vehicle that I have never
witnessed . . . from occupants of a ve hicle since I had been on the
highway patrol." (J.A. at 15 9). Yet, nervo usness and restlessness is a far
cry from furtive movements. Further, when Trooper Hannon testified that
Petitioner and Chapman appeared nervous and restless, he did not
articulate what Petitioner and Chapman were doing for Trooper Hannon
to support his testim ony. T hus, eve n if we were to consider this testimony
as the basis for the state trial and app ellate court’s use of the phrase
"furtive gestures", we conclude that this testimony is not supported by
specific and articulable facts which would support his opinion that
Petitioner and Chapman ap peared to be nervo us and restless.
discern specific and articulable facts to support the trooper’s
opinion that Petitioner made furtive gestures.4 If Petitioner
and/or his companion had engaged in any "furtive gestures",
the troopers would have been justified in ordering Petitioner
and his companion out of the vehicle and performing a
cursory pat-down of Petitioner and his companion as
permitted under Terry. See Pennsylvania v. Mimms, 434 U.S.
106, 111-12 (1977). Yet, here, there is nothing in the record
to reflect that Trooper Hannon performed a cursory pat-down
of Petitioner or his companion after observing their behavior
during the traffic stop. In fact, the troopers did not conduct a
pat-down of the passenger until the canine patrol alerted on
the seam of the passenger door of the rental car. To accept
the trooper’s conclusory remark of nervousness and
restlessness to establish the reasonable suspicion standard is
contrary to Terry and Prouse because to do so results in
reliance upon the trooper’s hunches.
Thus, upon our review of the record, the Ohio Court of
Appeals’ finding of furtive gestures is not supported by
objective facts, and cannot be an independent factor to justify
22 Joshua v. DeWitt No. 01-4118
5Wardlow was decided on January 12, 2000, and is to be considered
here because the final date of Petitioner’s conviction is May 5, 2000.
Trooper Hannon’s continued detention of Petitioner. The
only remaining factors articulated by the Ohio Court of
Appeals to support its finding that Trooper Hannon had
reasonable suspicion, are Petitioner’s and his companion’s
nervousness and the illogical route Petitioner gave regarding
his travel plans.
As to nervousness, the Supreme Court noted that "[o]ur
cases have also recognized that nervous, evasive behavior is
a pertinent factor in determining reasonable suspicion.”
Illinois v. Wardlow, 528 U.S. 119, 124 (2000)5 (emphasis
added). For this proposition, the Supreme Court cited several
of its decisions involving evasive efforts to escape detection
at the Mexico border and airports. United States v. Brignoni-
Ponce, 422 U.S. 875, 885 (1975) ("The driver’s behavior may
be relevant, as erratic driving or obvious attempts to evade
officers can support a reasonable suspicion."); Florida v.
Rodriguez, 469 U.S. 1, 6 (1984) ("[T]he three confederates
. . . had spoken furtively to one another. One was twice
overheard urging the others to ‘get out of here.’ Respondent’s
strange movements in his attempt to evade the officers
aroused further justifiable suspicion . . . ."); Sokolow, 490
U.S. at 5, 8-9 (noting that "[Respondent] appeared to be very
nervous and was looking all around the waiting area," but that
"one taking an evasive path through an airport might be
seeking to avoid a confrontation with an angry acquaintance
or with a creditor").
The purpose of these quotations from the Supreme Court
decisions is that "nervous, evasive behavior" is the standard
to justify reasonable suspicion, not nervousness or
restlessness. Here, the trooper’s perception of Petitioner and
his companion were not objective facts of "nervous, evasive
behavior." As to Petitioner’s travel route, while the route
made no sense to the trooper, the route is not a fact suggestive

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No. 01-4118 Joshua v. DeWitt 23
of illegal conduct. Whether considered individually or
collectively, Petitioner’s cited conduct could be perfectly
consistent with innocent behavior, and we conclude that
nervousness and illogical travel plans could not give rise to an
"inference supporting a reasonable suspicion of criminal
activity" to justify Petitioner’s continued detention. Florida
v. Royer, 460 U.S. 491, 512 (1983) (Brennan, J., concurring).
Thus, Trooper Hannon’s continued detention of Petitioner
was unreasonable under the Fourth Amendment and, as a
result, the Ohio courts unreasonably denied Petitioner’s
motion to suppress.
We conclude that the state court decision was "contrary to"
clearly established Supreme Court precedent because Hensley
clearly requires that where a police flyer is used to justify a
police officer’s reasonable suspicion for a stop of the person,
the state must present proof that the police officer who issued
the flyer had reasonable suspicion to do so for evidence from
the stop to be admissible. On this record, the state’s proof on
the Hensley issue was clearly deficient. A reasonable counsel
would have so argued on Petitioner’s behalf. Neither
Petitioner’s trial nor his appellate counsel cited Hensley to
argue that the state did not meet its evidentiary burden, as
required under Hensley. On this record, if the Hensley
argument were made, the evidence from Petitioner’s stop
would be inadmissible. "Assuming the police make a Terry
stop in objective reliance on a flyer or bulletin, we hold that
evidence uncovered in the course of the stop is admissible if
the police who issued the flyer or bulletin possessed a
reasonable suspicion justifying a stop." Hensley, 469 U.S. at
233 (emphasis added). Without the fruits of the Troopers’
detention and search, there is a substantial uncertainty as to
whether Petitioner’s conviction can stand.
In addition, we believe that the state court decision was
contrary to clearly established Supreme Court precedent
because the state failed to meet its evidentiary burden by
presenting proof that the officer who issued the "Read &
Sign" had reasonable suspicion to do so, as required under
24 Joshua v. DeWitt No. 01-4118
Hensley. To hold otherwise would render Hensley
meaningless.
The dissenting opinion lists several facts that were not
found by the Ohio Court of Appeals and relies upon its
independent review of the record to support its conclusion
that Petitioner’s detention was reasonable under the Fourth
Amendment. With the exception of the facts of an illogical
route and the "Read & Sign, the dissent’s additional facts
include: (1) Trooper Hannon’s knowledge of a "highly
interesting telephone conversation between his dispatcher and
a police officer in Portsmouth;" (2) Petitioner’s and his
companion’s suspicious behavior once backup arrived;
(3) Trooper Hannon’s awareness of Petitioner’s criminal
history; (4) notice by the Portsmouth detective that Petitioner
might be armed and dangerous; and (5) the patrol dog alerting
on the vehicle.
As to the telephone conversation between the dispatcher
and a Portsmouth police officer as well as notice by the
Portsmouth police department that Petitioner might be armed
and dangerous, the dissenting opinion notes that around 11:15
a.m., when Trooper Hannon was informed about the Read &
Sign, the dispatcher promised Trooper Hannon that he would
have a detective familiar with Petitioner call Trooper Hannon
back. Yet, the record reflects that the detective did not call
Trooper Hannon back until 11:48 a.m., one minute prior to
the arrival of the drug-sniffing dogs. Even assuming that the
detective provided Trooper Hannon with enough first-hand
information to reach the level of reasonable suspicion (which
is not apparent from the record), we conclude that Trooper
Hannon was not entitled to detain Petitioner indefinitely while
waiting on a telephone call from a detective who was
“familiar” with Petitioner, in order to acquire sufficient
reasonable suspicion. That is to say, the promise of potential
future reasonable suspicion does not satisfy the demand for
present (and continuing) reasonable suspicion.

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No. 01-4118 Joshua v. DeWitt 25
As to Petitioner and his companion’s nervousness once
backup arrived, the dissent notes that Petitioner and his
companion displayed “constant activity in the vehicle” that
Trooper Barnes described as looking backward to watch the
police activity and staring at the officers. Yet, in our view,
this behavior, as was articulated by Trooper Barnes, seems to
be as consistent with innocence as with guilty. In a word,
anyone who has been pulled over and detained for a certain
length of time, only to see backup police arrive (with no
explanation from the officers as to why) would, at the least,
be curious as to the necessity for backup. We further note
that none of the officers described excessive shaking,
stammering, or attempts to conceal anything on the part of
either vehicle occupant. Again, behavior that is consistent
with innocent activity cannot suffice to establish reasonable
suspicion. Royer, 460 U.S. at 512.
As to Trooper Hannon’s awareness of Petitioner’s past
criminal history, the dissent contends that this awareness,
coupled with the other factors, gave rise to reasonable
suspicion to detain Petitioner. We conclude, however, that
this fact, by itself, does not create a reasonable suspicion that
criminal activity is currently afoot, which is what the
Supreme Court requires. Terry, 392 U.S. at 30. We further
note that although past criminal activity is a factor that can be
taken into consideration, in this case it does not create
reasonable suspicion when considered in tandem with
Petitioner’s alleged nervousness, unarticulated furtive
gestures, and “illogical” travel route. More importantly, the
record reflects that Trooper Hannon did not learn of
Petitioner’s past criminal history until 11:22 a.m. or 11:23
a.m., by which time Trooper Hannon had already verified that
Petitioner was in lawful possession of the rental car and had
already been detaining Petitioner without reasonable
suspicion for quite some time.
Finally, the dissent also relies upon the patrol dog’s alert on
the vehicle to conclude that reasonable suspicion existed to
detain Petitioner. We concede that the patrol dog’s alert not
26 Joshua v. DeWitt No. 01-4118
only gave rise to reasonable suspicion, but also gave rise to
probable cause for the police to then search Petitioner’s
vehicle. Yet, the patrol dog did not alert on the vehicle until
11:49 a.m., and leading up to this point, reasonable suspicion
did not exist when one considers the totality of the
circumstances. Thus, in our view, the patrol dog’s alert on
the vehicle does not satisfy the Fourth Amendment inquiry,
if we are able to conclude that reasonable suspicion to detain
Petitioner did not exist until the dog alerted on the vehicle.
Albeit in a probable cause context, a longstanding Supreme
Court precedent is articulated in Beck v. State of Ohio, 379
U.S. 89, 91 (1964), wherein the Supreme Court stated that:
Whether [an] arrest [is] constitutionally valid depends in
turn upon whether, at the moment the arrest [is] made,
the officers ha[ve] probable cause to make it- -whether at
that moment the facts and circumstances within their
knowledge and of which they ha[ve] reasonably
trustworthy information [a]re sufficient to warrant a
prudent man in believing that the [suspect] ha[s]
committed or [is] committing an offense.
Id. (citing Brinegar v. United States, 338 U.S. 160, 175-76
(1949). See also United States v. Nigro, 727 F.2d 100, 103
(6th Cir. 1984)(“Probable cause has been defined repeatedly
by the Supreme Court in terms of the facts and circumstances
known to the officers at the time the decision is made to
undertake an arrest or search.”)(citing Brinegar, 338 U.S. at
175-76).
We find that these principles also apply in a reasonable
suspicion context such that a reviewing court must look to the
“facts and circumstances known to the officers at the time the
decision is made to undertake a detention” of the suspect.
Nigro, 727 F.2d 103. Accordingly, while we have considered
those factors enumerated by the dissent, in determining
whether Trooper Hannon had reasonable suspicion to detain
Petitioner, we primarily look to those “facts and

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No. 01-4118 Joshua v. DeWitt 27
circumstances known to [Trooper Hannon] at the time” he
made the decision to detain Petitioner. Id. Yet, in our
independent review of the state court record and under the
totality of the circumstances of this case, those factors
enumerated by the dissent, considered individually or
collectively, still do not give rise to reasonable suspicion to
justify Petitioner’s detention.
Nevertheless, in considering the factors relied upon by the
dissent, we are still mindful that our focus is on whether the
state court’s “decision was ‘contrary to’ or an ‘unreasonable
application of’ [Supreme Court] clearly established
precedents, or whether it was ‘based upon an unreasonable
determination of the facts.’” Price v. Vincent, 538 U.S. ___,
123 S.Ct. 1848, 1852 (2003). In this regard, we note that
under Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000), where
a state court fails to articulate its reasoning, “federal habeas
courts are obligated to conduct an independent review of the
record and applicable law to determine whether the state court
decision is contrary to federal law, unreasonably applies
clearly established law, or is based on an unreasonable
determination of the facts in light of the evidence presented.”
Id. at 943 (citing Aycox v. Lytle, 196 F.3d 1174, 177-78 (10th
Cir. 1999). Yet, any independent review that is conducted
must remain deferential to the state court’s decision and
cannot amount to a “full, de novo review of the claims.”
Harris, 940 F.3d at 943. While Harris does not expressly
preclude federal courts from conducting an independent
review of the record when the state court articulates its
reasoning, in evaluating habeas claims, federal courts must be
careful not to engage in a de novo review. Price, 123 S.Ct. at
1852. Instead, under Prince, federal courts are limited to
evaluating habeas claims “through the lens of § 2254(d).” Id.
See also Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir. 2000)
(finding a distinction between independent review of the
record and a de novo review such that an independent review
“does not . . . independently ascertain whether, in its
judgment, there has been a violation of the petitioner's
28 Joshua v. DeWitt No. 01-4118
constitutional rights prior to determining whether the state
court's decision was reasonable.”).
Here, the Ohio Court of Appeals clearly articulated its
factual findings and reasoning in denying Petitioner’s
challenge to his conviction. While we are not precluded from
engaging in an independent review of the state court record,
we are prohibited from substituting our own independent
judgment as to what we believe the state courts could and/or
should have considered in reaching its conclusions.
Nevertheless, our independent review of the state court record
for clear error reveals that Trooper Hannon lacked a
justifiable factual basis, in effect, to detain and/or arrest
Petitioner.
b. “Unreasonable Application” Analysis
Under the "unreasonable application" clause of the
AEDPA, we must compare the facts found by the Ohio Court
of Appeals for its conclusion, to the applicable Supreme
Court precedents. To be sure, the Ohio Court of Appeals’
express factual findings that supported Petitioner’s continued
detention are namely (1) the discrepancy in Petitioner’s rental
car papers; (2) Petitioner’s illogical route; and (3) Petitioner
and his passenger made furtive gestures and appeared
increasingly nervous.
First, we consider the Ohio Court of Appeals’ failures to
consider Hensley to be an unreasonable application of clearly
established Supreme Court precedents. Hensley is at the core
of Petitioner’s Sixth Amendment claim, and Kimmelman
requires its consideration. Second, we conclude that
Petitioner’s detention could not be justified by the facts found
by that court under relevant Supreme Court precedents. As to
the "Read & Sign", under Hensley, this information cannot be
used to support whether Trooper Hannon had reasonable
suspicion to detain Petitioner because the state failed to
present proof that the officer who caused the entry of the
"Read & Sign" had reasonable suspicion to do so. As to the

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No. 01-4118 Joshua v. DeWitt 29
fact of Petitioner’s illogical route, we conclude this fact, even
when coupled with Petitioner’s appearance of nervousness, to
be insufficient to give rise to reasonable suspicion to justify
Petitioner’s continued detention. In light of these
conclusions, the state court unreasonably applied clearly
established Supreme Court precedent, which requires specific
facts justifying reasonable suspicion of criminal conduct,
Terry, 392 U.S. at 21.
Our standard of review does not permit us to engage in a
full scale de novo review, but an independent review of the
state court record reflects that the critical facts to justify
Petitioner’s detention here are those facts Trooper Hannon
identified in his decision to detain Petitioner.
Q: In fact, Mr. Joshua was not free to leave from the
time that you heard the information about the READ
AND SIGN. Correct?
A: Correct.
* * *
Q: When was it after . . . when did you check the rental
car information after you made the decision that Mr.
Joshua was not free to leave?
A: Once I found out about the READ AND SIGN
information, that was the first time I looked at the
rental papers.
Q: So, actually you had made the decision that Mr.
Joshua was not free to leave before you looked at the
rental information?
A: Correct.
(J.A. at 128, 129-30).
30 Joshua v. DeWitt No. 01-4118
Under Supreme Court and our precedents, this testimony is
the classic formulation for an arrest that requires probable
cause. See Dunaway v. New York, 442 U.S. 200, 215-16
(1979); United States v. Obasa, 15 F.3d 603, 607 (6 th Cir.
1994) ("When police actions go beyond checking out the
suspicious circumstances that led to the original stop, the
detention becomes an arrest that must be supported by
probable cause.").
At that point, the only facts that Trooper Hannon possessed,
apart from the "Read & Sign" information, was that Petitioner
and his passenger appeared nervous and suspicious, and that
Petitioner gave an illogical route. Thus, even if we were to
undertake an independent review, this is the critical point of
Petitioner’s detention, because this decision lead to the
subsequent course of events resulting in the discovery of the
evidence used against Petitioner to secure his conviction. At
this point, however, Trooper Hannon lacked reasonable
suspicion to detain Petitioner or probable cause to arrest
Petitioner. Trooper Hannon actually did the latter.
From his testimony, Trooper Hannon lacked probable cause
to arrest Petitioner. Dunaway, 442 U.S. at 215-16. Petitioner
was prejudiced by his counsel’s failure to raise the contention
under Hensley, because without the information contained in
the "Read & Sign," Trooper Hannon lacked specific and
objective facts to justify reasonable suspicion to detain
Petitioner. The exclusion of the "Read & Sign" proof
establishes a "reasonable probability that the result would
have been different." See Skaggs v. Parker, 235 F.3d 261
(6th Cir. 2000).
In sum, we conclude that because Petitioner had a
meritorious Fourth Amendment claim, Petitioner has shown

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No. 01-4118 Joshua v. DeWitt 31
6W e note that the dissenting opinion contends that a Hensley
challenge would not have altered the state trial court’s decision to deny
Petitioner’s motion to suppress because the state trial court concluded that
Petitioner lacked standing to challenge the drug seized from and/or the
statements by his co mpa nion. Y et, Hensley expressly provides that
“[a]ssuming the police make a Terry stop in objective reliance on a flyer
or bulletin, we hold that the evidence uncovered in the course of the stop
is adm issible if the police who issued the flyer po ssessed a reasona ble
suspicion justifying th e stop . . . .” Hensley 469 U.S. at 233 . Hence, a
Hensley challenge in this case would have compe lled the granting of
Petitioner motio n to sup press beca use the state failed to prove that the
officer who issu ed the flyer relied upon to de tain Pe titioner had
reaso nable suspicion to do so. Two Circuit Courts have interpreted
Supreme Court precedents to support the proposition that all occupants of
a vehicle have a right to challenge the illegality of the stop and/or
detention. See United States v. Woodrum, 202 F.3d 1, 5-6 (1st Cir. 2002)
(citing Rakas v. Illinois, 439 U.S. 128, 138-39 (19 78))(holding that “each
occupant of a car has a right to cha llenge the propriety of a traffic stop
under the Fourth Amendment.”). See also U nited States v. Erw in, 875
F.2d 268, 269 , n.2 (10t h Cir. 1989) (citing Wong Sun v. United States,
371 U.S. 471, 484 (1963))(“Even if defendant lacks standing to challenge
the search of the car, if the initial stop was illegal, the seized contraband
is subject to exclusion under the ‘fruit of the poisonous tree’ doctrine.”).
Here, given o ur conclusion that Petitioner’s detention wa s illegal,
then, under Hensley, the evidence uncovered from the passenger and the
search of her person is inadmissible. Because we conclude the detention
to be unreasonable under the Fourth Amendm ent, Petitioner has standing
to challenge any evidence ob tained from that detention as fruit of the
poisonous tree. Wong Sun, 371 U.S. at 484 . Thus, we respectfully
disagree with the dissenting opinion’s co ntention that the state trial court’s
decision would not have been changed if Petitioner’s trial counsel raised
a Hensley challenge.
prejudice due to his trial counsel’s deficient performance.6
Petitioner’s appellate counsel was also ineffective for failing
to raise Hensley, given our conclusion that Petitioner would
have been meritorious on his Fourth Amendment claim and
that under Ohio law, Petitioner’s appellate counsel could have
raised the Hensley issue on appeal.
On the prejudice issue, we recognize that in Arizona v.
Evans, 514 U.S. 1, 3-4 (1995), the Supreme Court discussed
32 Joshua v. DeWitt No. 01-4118
Hensley and held that the facts there did not require the
evidence seized in violation of Hensley to be excluded. In
Evans, the Supreme Court held that the exclusionary rule did
not require the suppression of evidence that was seized in
violation of the Fourth Amendment where an officer relied
upon a police record that was later determined to be erroneous
due to omissions of court employees or sheriff office
employees. 514 U.S. at 3-4, 5, 15. The Supreme Court in
Evans stated that "[t]he question whether the exclusionary
rule’s remedy is appropriate in a particular context has long
been regarded as an issue separate from the question whether
the Fourth Amendment rights of the party seeking to invoke
the rule were violated by police conduct." Id. at 10 (quoting
Illinois v . Gates, 462 U.S. 213, 223 (1983)). In a word, a
successful Hensley challenge does not automatically compel
the exclusion of evidence seized in violation of the Fourth
Amendment; rather, "exclusion is appropriate only if the
remedial objectives of the [exclusionary] rule are thought
most efficaciously served." 514 U.S. at 14 (citing United
States v. Calandra, 414 U.S. 338, 348 (1974)).
The exclusionary rule is a judicial remedy that operates "to
deter future unlawful police conduct and thereby effectuate
the guarantee of the Fourth Amendment against unreasonable
searches and seizures," as well as to maintain the integrity of
the judicial process. Calandra, 414 U.S. at 348. The rule’s
application is limited to those "instances where its remedial
objectives are thought most efficaciously served." Evans, 514
U.S. at 11 (citing United States v. Leon, 468 U.S. 897, 908
(1984)). Yet, if "the exclusionary rule does not result in
appreciable deterrence, then clearly, its use . . . is
unwarranted." United States v. Janis, 428 U.S. 433, 454
(1976).
We conclude that the remedial objectives of the
exclusionary rule are "most efficaciously served" here
because the evidence was seized due to an unlawful detention,
and therefore should have been suppressed. While the
historical purpose of the exclusionary rule is to deter police

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No. 01-4118 Joshua v. DeWitt 33
misconduct, in light of the prosecutor’s interest in the
outcome of this case, we conclude that the exclusionary rule
also serves to deter prosecutorial misconduct in its failure to
comply with clearly established constitutional principles.
Here, Hensley clearly required evidence from the police
officers who provided the information in the "Read & Sign"
book that those officers had reasonable suspicion to believe
that Petitioner was involved in criminal activity. Consistent
with Hensley, "a Terry stop in objective reliance on a flyer or
bulletin, we hold that the evidence uncovered in the course of
the stop is admissible if the police who issued the flyer or
bulletin possessed a reasonable suspicion justifying the stop."
Hensley, 469 U.S. at 233 (emphasis added in the original and
added in part). The prosecutor’s failure here was in
circumstances in which the Ohio Court of Appeals believed
the Hensley issue was implicitly raised. Failure to apply the
exclusionary rule under these circumstances would render the
Supreme Court’s clear holding in Hensley meaningless. The
exclusionary rule’s application here would deter prosecutors
from failing to present the necessary proof required by
Hensley.
As to whether the exclusionary rule was properly applied
here, we note that the exclusionary rule and the Fourth
Amendment are designed to constrain state governments.
This includes state prosecutors. The application of the
exclusionary rule is appropriate given that Hensley, clearly
applicable law, was violated. Moreover, Hensley focuses
expressly on the requisite proof that the state must introduce
in these circumstances. Here, the critical omission was the
state prosecutor’s failure to establish at the suppression
hearing whether the officer who issued the "Read & Sign"
had reasonable suspicion to do so, as required under Hensley,
clearly established Supreme Court precedent. If one of the
purposes of the Fourth Amendment is to constrain state
governments, the enforcement of the exclusionary rule here
is well served by deterring prosecutors from failing to comply
with clearly established constitutional principles, such as
34 Joshua v. DeWitt No. 01-4118
7W e note that the dissenting opinion contends that we are second
guessing the judgment call of the state prosecuto r, we respectfully
disagree. Our ruling simply requires state prosecutors to comply with a
constitutional rule of evidence that is necessary to establish the
justification to detain or arrest a citizen. If the presentation of such proof
were not required, the effect would be that the mere issuance of a flyer
would constitute sufficient proof that an officer had a reaso nable
suspicion of criminal activity, contrary to Hensley.
Hensley.7 The effect of our ruling on the state’s non-
compliance with clearly established Supreme Court precedent
is Petitioner’s retrial or release.
CONCLUSION
For the reasons set forth above, we REVERSE the district
court’s denial of Petitioner’s petition for habeas relief because
the state court judgment was objectively unreasonable and
Petitioner was denied effective assistance of trial and
appellate counsel. This action is REMANDED for further
proceedings consistent with this opinion.

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No. 01-4118 Joshua v. DeWitt 35
___________________
CONCURRENCE
___________________
CLAY, Circuit Judge, concurring. Although I agree with
the outcome reached in this case, as well as most of the
majority opinion’s reasoning, I write separately to articulate
my view of some of the issues in this case, and why I am
persuaded that the Ohio Court of Appeals’ decision to affirm
Joshua’s conviction “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1).
The Fourth Amendment requires a law enforcement officer
to possess reasonable suspicion to detain a suspect at a traffic
stop; thus, if reasonable suspicion is not apparent at the outset
of a traffic stop, the officer must release the suspect.
Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984)
(“[U]nless the detainee’s answers provide the officer with
probable cause to arrest him, he must be released.”). If the
officer is suspicious at the outset but the officer’s inquiries
reasonably allay that suspicion, the officer must release the
suspect. Hayes v. Florida, 470 U.S. 811, 815-16 (1985);
United States v. Heath, 259 F.3d 522, 531 (6th Cir. 2001);
United States v. Butler, 223 F.3d 368, 375 (6th Cir. 2000).
The officer may not detain a suspect without legal
justification in hopes of generating reasonable suspicion by
observing the suspect’s subsequent actions or by acquiring
subsequent information.
The record in the instant case indicates that Trooper
Hannon detained Joshua’s vehicle based on the Read & Sign.
However, for the reasons stated in the majority opinion, the
Read & Sign did not provide the requisite reasonable
suspicion. Thus, Trooper Hannon should have released
Joshua at that time or shortly thereafter. Instead, Trooper
Hannon continued to detain Joshua while he waited for the
36 Joshua v. DeWitt No. 01-4118
drug-sniffing dogs to arrive. It was unreasonable under the
circumstances to detain Joshua for even a short time pending
the arrival of the drug-sniffing dogs because at that point
Trooper Hannon lacked a sufficient basis for detaining him.
In point of fact, the dogs did not arrive until 11:49 a.m., some
forty-two minutes after the traffic stop had been initiated. A
detention of that duration without a sufficient legal basis was
particularly unreasonable.
The intervening developments at the scene of the traffic
stop cited by the Ohio Court of Appeals and described by the
dissent did not provide the requisite reasonable suspicion in
lieu of the Read & Sign. A fair reading of the record shows
that the events proceeded as follows:
11:07 a.m. Trooper Hannon stops Joshua’s car. Joshua gives
Hannon his driver’s license and car rental papers.
11:10 a.m. Trooper Hannon runs a status check; the
dispatcher informs him about the Read & Sign
entry. Trooper Hannon requests a canine unit.
11:15 a.m. The dispatcher calls Columbus to see if Joshua
has any outstanding warrants; there are none.
Around this same time, the dispatcher promises
Trooper Hannon that he will have a detective
“familiar” with Joshua call Trooper Hannon back.
11:17 a.m. Trooper Barnes arrives on the scene. Joshua and
his companion exhibit “constant activity in the
vehicle.”
11:20 a.m. Trooper Hannon asks the dispatcher to check on
Joshua’s car rental papers.
11:22 a.m. Joshua’s rental papers check out. The dispatcher
runs a criminal check on Joshua and transmits the
results of Joshua’s criminal history to Trooper
Hannon.

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No. 01-4118 Joshua v. DeWitt 37
11:25 a.m. The dispatcher reaches a canine unit.
11:45 a.m. Sergeant Turner arrives and helps Trooper
Hannon place stop sticks around Joshua’s vehicle.
11:48 a.m. A detective who is “familiar” with Joshua calls
Trooper Hannon back; he tells Trooper Hannon
that Joshua may be armed and dangerous.
11:49 a.m. A canine unit arrives. The drug-sniffing dog
alerts on Joshua’s vehicle, whereupon the police
search the vehicle and discover drugs.
None of these events permitted Trooper Hannon to detain
Joshua over this forty-two minute time frame. Certainly the
concern about the rental car paperwork did not provide
reasonable suspicion because the discrepancy in the
paperwork perceived by the trooper did not surface until
approximately 11:18 a.m. Trooper Hannon should already
have released Joshua by 11:18 a.m. because by that time
Trooper Hannon had already detained Joshua for several
minutes without reasonable suspicion. Moreover, the
paperwork discrepancy was resolved expeditiously, i.e.,
around 11:22 a.m., leaving a twenty-seven minute time gap
until the drug-sniffing dogs arrived.
Furthermore, none of the additional factors cited by the
dissent amounted to reasonable suspicion. As the majority
opinion points out, by the time reasonable suspicion had
surfaced, Trooper Hannon had been detaining Joshua illegally
for a substantial period of time, and thus a Fourth
Amendment violation had already occurred notwithstanding
any subsequent events purportedly giving rise to reasonable
suspicion. The additional factors mentioned by the dissent,
even when considered in tandem with the other facts, fail to
constitute reasonable suspicion.
For instance, the dissent notes that although Joshua and his
companion were initially calm, upon the arrival of backup
38 Joshua v. DeWitt No. 01-4118
they began turning around and staring at the officers. Yet, as
the majority opinion correctly observes, the behavior
described by Trooper Barnes might evidence little more than
mere curiosity or concern by the two individuals as to their
surroundings and the ever-increasing police activity. Any
interpretation of this behavior as an indication that criminal
activity was afoot amounts to little more than an “inchoate
and unparticularized suspicion or ‘hunch.’” Reid v. Georgia,
448 U.S. 438, 441 (1980) (per curiam) (rejecting as a possible
basis for reasonable suspicion the airport agent’s testimony
that the defendant and his traveling companion “appeared . . .
to be trying to conceal the fact that they were traveling
together” because the defendant “preceded [the companion]
and occasionally looked backward at him as they proceeded
through the [airport] concourse,” and reasoning that this
behavior provided “too slender a reed to support the seizure
in this case”) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968))
(internal quotation marks omitted); see also Florida v. Royer,
460 U.S. 491, 512 (1983) (Brennan, J., concurring)
(observing that facts leading the airport agents to detain the
defendant did not constitute reasonable suspicion because
they were “perfectly consistent with innocent behavior and
[could not] possibly give rise to any inference supporting a
reasonable suspicion of criminal activity”). Simply stated,
turning around and staring at the police officers did not create
a “rational inference[]” that “reasonably warrant[ed] the
continued detention of” Joshua and his companion. United
States v. Smith, 263 F.3d 571, 588 (6th Cir. 2001) (citing
Terry, 392 U.S. at 21).
Similarly unpersuasive as grounds for reasonable suspicion
is Trooper Hannon’s purported knowledge of a “highly
interesting telephone conversation between his dispatcher and
a police officer in Portsmouth” and the statement by the
Portsmouth detective that Joshua might be armed and
dangerous. The information that Joshua might have been
armed and dangerous, apparently of dubious origin and
reliability, was not transmitted to Trooper Hannon until 11:48
a.m., some forty-one minutes after the traffic stop

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No. 01-4118 Joshua v. DeWitt 39
commenced. As the majority opinion correctly notes, a police
officer may not properly detain a suspect in the hope of
receiving useful information in the future.
I also am not persuaded that Trooper Hannon’s awareness
of Joshua’s criminal record, even when considered together
with Joshua’s purported nervousness, unarticulated furtive
gestures, and “illogical” travel route, justified this lengthy
detention. First of all, the record does not specify the nature
of Joshua’s criminal history, obviating any consideration of
the criminal history’s probative value on habeas review.
Second, Trooper Hannon was not informed of Joshua’s
criminal history until 11:22 a.m. or 11:23 a.m. The situation
presented by this case therefore differs markedly from the
situation where a law enforcement officer has a legitimate
basis to suspect a particular individual of a criminal offense
and is advised during the course of the detention that the
person being investigated has a criminal record suggestive of
the kind of criminal activity under investigation. In that
situation, which is obviously not present here, a further
detention of the suspect in all likelihood would be justified.
Finally, the fact that the patrol dogs ultimately alerted on
Joshua’s vehicle does not assist our legal analysis because
although such an occurrence ordinarily would furnish
probable cause for a police officer to search a vehicle for
drugs, United States v. Bailey, 302 F.3d 652, 659 n.7 (6th Cir.
2002), the subsequent discovery of circumstances justifying
probable cause–coming long after Joshua should have been
released–cannot vitiate Joshua’s earlier improper detention
without reasonable suspicion.
The dissent is correct that in some cases reasonable
suspicion can properly be gleaned from several facts,
considered in concert, none of which individually would give
rise to reasonable suspicion. However, as previously stated,
the factors cited in the dissent, even when taken together, do
not meet this burden. Four of these additional factors did not
manifest themselves until well after the point that Trooper
40 Joshua v. DeWitt No. 01-4118
1The majo rity opinion reasons, as alternative grounds for
disregarding the additiona l factors cited by the dissent, that this Court is
not permitted to look beyond the facts found in the state court’s opinion,
citing Ha rris v. Stovall, 212 F.3d 940, 943 (6th C ir. 200 0) for this
proposition. W hether the reasoning in Ha rris extends to the present
situation is uncertain at best. Ha rris seems to speak to the situation where
the state court has not articulated its reasoning, in which case federal
courts are obligated to review the entire record. Ha rris does not see m to
expressly state that federal courts are precluded from conducting an
independent review of the record when the state court has articulated its
reasoning. Although the m ajority opinio n’s read ing of Ha rris might be
appropriate, I do not find it necessary to rest my reasoning on those
grounds. Instead, I am content to base my reasoning on the fact that the
factors cited by the dissent and the Ohio Court of Appeals were
insufficient to justify Joshua’s detention.
Hannon should have released Joshua. The other
factor–Trooper Hannon’s having learned from the dispatcher
that a man with Joshua’s name was allegedly transporting
drugs from Portsmouth to Columbus–is simply the
information from the Read & Sign, on which Trooper Hannon
cannot be permitted to rely, based upon the holding of United
States v. Hensley, 469 U.S. 221, 233 (1985).1
To summarize, I am principally persuaded that Joshua’s
habeas petition should be granted because the Read & Sign
did not provide the requisite reasonable suspicion to justify
the detention which eventually led to the discovery of the
illegal drugs, and the additional justification for the detention,
as described by the Ohio Court of Appeals and the dissent
herein, was wholly inadequate and failed to establish
reasonable suspicion. For these reasons, I concur in the
majority opinion.

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No. 01-4118 Joshua v. DeWitt 41
_____________
DISSENT
_____________
DAVID A. NELSON, Circuit Judge dissenting. The stars
that must be in alignment before the issuance of a writ of
habeas corpus can be justified in this case include all of the
following:
1) Petitioner Joshua’s Fourth Amendment right to be
secure against unreasonable searches and seizures must
be found to have been so jeopardized by what
happened here that the state courts were required, as a
matter of federal law, to exclude the evidence of
Joshua’s criminal activity.
2) Joshua must be found to have been denied his Sixth
Amendment right to counsel, a finding dependent upon
his satisfying both branches of the test in Strickland v.
Washington, 466 U.S. 668 (1984):
a) he must show that his lawyers were guilty of
“incompetence” (see Kimmelman v. Morrison,
447 U.S. 365, 382 (1986)) when they failed to
support their suppression arguments with a
citation to United States v. Hensley, 469 U.S. 21
(1985), and
b) he must show a reasonable probability that the
state courts would have reached a different result
if their attention had been called to Hensley.
3) The state court decisions on both the admissibility of
the evidence and the alleged denial of right to counsel
must have been “contrary to, or involved an
unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of
the United States . . . .” 28 U.S.C. § 2254(d).
42 Joshua v. DeWitt No. 01-4118
1“If Aaron Joshua’s court-appointed trial counsel had been familiar
with the Supreme Co urt’s opinion in Hensley,” as I acknowledged in an
earlier draft of this dissent, “he probably would (and should) have cited
it . . . .”
I am not persuaded that any of these prerequisites can fairly
be held to have been met. But perhaps the clearest ground for
affirming the district court’s denial of habeas relief is that
Joshua flunks the “prejudice” branch of the Strickland test.
As I read the state court record, the conclusion that Joshua
suffered no prejudice as a result of his lawyers’ failure to cite
Hensley is the only conclusion that could reasonably be
reached.
To start with the proceedings before the state common
pleas court, I note that defense counsel made a timely
objection to the admission in evidence of the “Read & Sign”
bulletin on which Trooper Hannon relied in detaining Joshua.
The lawyer argued that the bulletin constituted “hearsay on
hearsay” and that it “was never verified.” Although a citation
to Hensley would obviously have been appropriate at that
point,1 it is crystal clear that such a citation would not have
changed the common pleas court’s decision to deny Joshua’s
motion to suppress. This is so because the denial of the
motion was based on the court’s conclusion that Mr. Joshua
lacked standing to challenge the search of his drug-laden
companion – a conclusion that could not logically have been
affected by anything in Hensley. If the result would have
been the same in any event, there could have been no
prejudice.
As to the proceedings in the Ohio court of appeals, I believe
it is equally clear that Mr. Joshua was not prejudiced by his
appellate lawyer’s failure to cite Hensley. Echoing the
argument made by trial counsel in objecting to the
introduction of the “Read & Sign” bulletin, appellate counsel
told the court of appeals that Mr. Joshua had been detained
for 42 minutes because Trooper Hannon “had received hear-

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No. 01-4118 Joshua v. DeWitt 43
say from the dispatcher that the dispatcher had hear-say from
another trooper who had read a hear-say document drafted
seven (7) days earlier by [Trooper Mikesh] stating that she
had heard from unknown sources within the Columbus police
that Aaron Joshua may be transporting cocaine between
Columbus and Portsmouth on a regular basis . . . .” Again, it
is true, there was no citation to Hensley – but again the
failure to cite Hensley did not affect the outcome. The court
of appeals simply finessed the unverified hearsay issue,
holding that Joshua’s detention could be justified by
articulable facts that were unrelated to the read-and-sign
bulletin and that were sufficient, standing alone, to give
trooper Hannon a basis for suspecting criminal activity. That
holding, like the trial court’s holding, could hardly have been
affected by a citation to Hensley. Against this background, I
do not believe it was unreasonable for the state court of
appeals subsequently to conclude that Joshua had failed to
prove he was prejudiced by his lawyers’ performance.
Although the absence of prejudice is in itself sufficient to
require rejection of Joshua’s claim, it seems to me that the
claim founders on the “incompetence” branch of Strickland as
well. Joshua has made a colorable argument that his
attorneys’ failure to cite Hensley was “unreasonable under
prevailing professional norms and . . . was not sound
strategy.” Kimmelman, 477 U.S. at 381 (citing Strickland,
466 U.S. at 688-89). But that argument is not so compelling,
in my view, that its rejection by the state court of appeals
must be considered unreasonable. Given the “strong
presumption” of constitutionally effective representation, id.,
Mr. Joshua’s Hensley issue would have to be more clearly
meritorious than it is, in my view, for the state court to have
been required to find his attorneys’ performance deficient. It
does not seem to me that the Hensley issue has such obvious
merit.
I do not read Hensley as requiring the state to present proof,
in every instance, of the facts known to a police officer who
issues a wanted flyer or other intelligence report that is relied
44 Joshua v. DeWitt No. 01-4118
2The make and model of the vehicle were established at a preliminary
hearing the transcript of which was incorporated in the record of the
hearing on Joshua’s motion for suppression of evidence.
upon by another officer. The essential holding of Hensley, as
I understand it, is that the officer who acts on the flyer need
not be privy to the facts underlying its issuance – what
matters, for purposes of determining whether a search or
seizure is constitutional, is whether the issuing officer had a
reasonable suspicion of criminal activity. See Hensley, 469
U.S. at 232-33. It does not necessarily follow from this that
the state must always put on evidence of the facts known to
the issuing officer, regardless of whether the arresting officer
has information outside the intelligence report that lends
credence to it.
The totality of the evidence presented at Joshua’s
suppression hearing strongly suggests that his detention for
the relatively short time it took the officers to complete their
investigation could be justified without the presentation of
any additional evidence. The hearing transcript contains
evidence of the following facts, among others:
– At 11:07 on the morning of the drug bust, Trooper
Hannon pulled Joshua over for speeding. The legitimacy
of the speeding stop is uncontested.
– The vehicle driven by Joshua was a red Pontiac Sunfire
with out-of-state plates.2 The car had been rented from
the Enterprise car rental concern. Joshua produced some
rental papers for Trooper Hannon’s inspection, but the
papers pertained to a maroon Geo Tracker and not to the
red Pontiac. Trooper Hannon, not unreasonably, asked
the dispatcher to check this discrepancy with Enterprise.
At 11:22 a.m., having called Enterprise, the dispatcher
advised the trooper that Mr. Joshua was entitled to be
driving the Pontiac.

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No. 01-4118 Joshua v. DeWitt 45
– In the meantime, shortly after 11:10 a.m., the dispatcher
had been alerted to the existence of the “Read & Sign”
bulletin. The bulletin indicated that Trooper Mikesh was
in receipt of information – information originating with
the police department of Columbus, Ohio – to the effect
that “an Aaron Joshua . . . was transporting crack cocaine
between Columbus and Portsmouth twice a week . . . and
that he was on parole [for] previous drug activity . . . .”
This information was promptly radioed to Trooper
Hannon. Significantly, Joshua himself had already told
the trooper that Portsmouth was his destination and that
he was driving there from Columbus.
– Trooper Hannon – again not unreasonably – asked the
dispatcher to call for a drug-sniffing dog and to check
with the police in Columbus and Portsmouth to see if
there were any outstanding warrants for Joshua. There
proved to be none, but the Portsmouth police officer with
whom the dispatcher spoke turned out to be familiar with
Joshua. The officer promised to “have a detective call
[the dispatcher] back with further information.” The
dispatcher advised Trooper Hannon of this development
at approximately 11:15 a.m., during the same radio
transmission in which he reported the results of his calls
to Columbus and to Trooper Mikesh, the officer in
charge of the drug dog.
– Trooper Hannon’s testimony, when read in conjunction
with the dispatcher’s, shows that the point at which the
trooper learned about the Portsmouth police department’s
familiarity with Joshua and its promise to have a
detective call back preceded the point at which the
trooper learned that the car rental company had no
problem with Joshua’s driving the Pontiac. This timing,
as we shall see, may have some relevance to our inquiry.
– Joshua was not free to leave the scene of the stop, of
course, while the telephone calls and radio transmissions
I have described were taking place. During the 10
46 Joshua v. DeWitt No. 01-4118
minutes or so when Trooper Hannon was the only officer
present, however, Joshua and his passenger were acting
“[q]uite normal,” according to the trooper, “like I would
expect any person that I had stopped for [a] speeding
violation to act.”
– At 11:17 a.m. a second state highway patrolman, Trooper
Barnes, arrived on the scene. With the arrival of the
backup unit, according to Trooper Hannon, the behavior
of the occupants of the Pontiac changed dramatically:
“They became extremely nervous, both Mr.
Joshua and Miss Chapman began looking over
their shoulder. Mr. Joshua was looking out the
driver’s side window trying to see behind him,
there was constant activity in the vehicle. I’ve
never stopped a vehicle where I’ve seen so
much activity and so much concern from the
occupants about what was going on around
them and behind them.” (Emphasis supplied.)
– Trooper Barnes confirmed this account, testifying that “I
noticed that there was a lot of movement in the vehicle
. . . . [Joshua] kept looking back. He was continually
keeping his eyes on myself and Trooper Hannon by
either physically turning around or looking through the
rearview mirror.” When asked if Joshua’s movements
were “the usual type of movements” made by the subject
of a traffic stop, Trooper Barnes answered “No.” As the
trooper went on to explain,
“Most people will turn and look, but not
continually on a non-stop basis, you know.
Eventually, they’ll kind of relax and settle
down, but that wasn’t the case in this instance.”
– At a time not entered in the log, according to the
dispatcher’s testimony, but probably at his first
opportunity after completing his phone calls (i.e.,

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No. 01-4118 Joshua v. DeWitt 47
sometime after 11:22 a.m.), the dispatcher ran a criminal
history check on Joshua. The dispatcher testified
unequivocally that he transmitted the results of the
criminal history check to Trooper Hannon.
– At 11:48 a.m., while Trooper Mikesh was on her way to
the scene with her drug dog, the dispatcher received the
promised call from Portsmouth. The caller, a Detective
Sgt. Brewer, confirmed that the Portsmouth police
department was familiar with Aaron Joshua. Detective
Brewer went on to tell the dispatcher that “Joshua might
be considered dangerous and possibly carried a weapon.”
The dispatcher so advised all units.
– Trooper Mikesh, who had just heard the dispatcher’s
latest report over her radio, reached the scene at 11:49
a.m. She saw Mr. Joshua seated in the Pontiac with both
his hands outside the door and his head craned
uncomfortably over his left shoulder. Trooper Hannon
told her that there had been a lot of movement in the car
– and Trooper Mikesh observed more movement as she
approached the vehicle: “I observed Mr. Joshua make a
sudden movement,” she testified, “and reached down
underneath with his right hand underneath the driver’s
seat.” Trooper Mikesh immediately ordered Joshua and
his companion to get their hands up. When satisfied that
it was safe to do so, she ordered them to put their hands
on the dash. Thereafter, the windows of the Pontiac
having been raised, Trooper Mikesh had her dog sniff the
vehicle. There has been no contention that the dog (or
any other dog) could have been brought to the car earlier
than this dog was.
– At 11:53 a.m. the dog alerted on the right seam of the
right front door, aggressively scratching at the vehicle.
The occupants of the Pontiac were then patted down,
Trooper Mikesh handling the (visibly pregnant)
passenger, Ms. Chapman. Some ten bundles of crack
cocaine were found in a plastic bag secured just below
48 Joshua v. DeWitt No. 01-4118
Ms. Chapman’s enlarged abdomen. Her arrest, and that
of Joshua, followed.
Given this considerable body of evidence, which bespeaks
excellent police work throughout, I believe that a competent
attorney could reasonably conclude that the government had
carried its burden of proof at the suppression hearing. With
respect to the 15-minute period from 11:07 a.m. to 11:22
a.m., it is obvious that Trooper Hannon did not need the
“Read & Sign” bulletin to justify Joshua’s detention from the
point at which the discrepancy in the rental papers was first
noticed to the point at which the discrepancy was resolved.
Joshua was driving a car that did not belong to him, after all,
and he claimed to have rented it. The car described in his
rental papers was not the car he was driving. Any
conscientious police officer would have wanted to assure
himself that the car had not been stolen, and it was not
unreasonable for Joshua to be kept at the scene while his
story was being checked with the car rental company.
We do not know the precise time at which Trooper Hannon
first noticed the discrepancy in the rental papers, but it is
probably fair to infer that it was a little after 11:15 a.m. This
was only eight minutes after the speeding stop. Joshua had
not theretofore been free to leave, of course, but there was a
good reason for his detention, the interval was very short, and
it was still close to the time of the speeding infraction.
When Trooper Hannon learned, at 11:22 a.m., that the car
had not been stolen, Joshua should and doubtless would have
been allowed to depart had the trooper not known of other
suspicious facts. But by 11:22 a.m. the trooper had
knowledge of several such facts, and he had knowledge of
more soon thereafter.
Fact number one was that Joshua said that he was driving
– by a somewhat improbable route – from Columbus to
Portsmouth.

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No. 01-4118 Joshua v. DeWitt 49
Fact number two was that the highway patrol was in receipt
of information, said to have originated with the Columbus
police department, that a man with Joshua’s name – a man on
parole in connection with a drug offense – was transporting
crack cocaine from one Ohio city to another twice a week.
The identity of the cities is of critical importance. The drugs
were not reported to be moving from Cleveland to
Chillicothe, or from Toledo to Youngstown, or from Canton
to Gallipolis; they were reported to be moving from
Columbus to Portsmouth, the very cities named by Mr.
Joshua himself. The detailed nature of the intelligence from
the Columbus police department, coupled with the
information provided independently by Joshua, thus gave rise
to articulable grounds for believing that the intelligence
furnished by the Columbus police was accurate. What
policeman would not have called for a drug dog under these
circumstances?
Fact number three was that before the all-clear arrived from
the rental car company, Trooper Hannon had learned of a
highly interesting telephone conversation between his
dispatcher and a police officer in Portsmouth. The State of
Ohio has a population of 11 million people, most of whom are
strangers to the Portsmouth police – but Trooper Hannon was
aware, at approximately 11:17 a.m., that Aaron Joshua was
known to the police of Portsmouth. Joshua might not have
been known in Chillicothe, or Youngstown, or Gallipolis, but
he was known by the police in the very city to which it had
been reported he was transporting drugs. It was not
objectively unreasonable, therefore, to detain Joshua a little
longer so that the dispatcher could get a reading on him from
the Portsmouth detective who was supposed to call the
dispatcher back.
Fact number four is that although Joshua and his
companion had not behaved suspiciously while there was
only one officer on the scene, they began acting strangely
when the backup arrived. The change in behavior would be
consistent with the hypothesis that Joshua was not worried
50 Joshua v. DeWitt No. 01-4118
about being stopped for speeding, and was not worried about
having his rental papers checked, but was very worried by the
trooper’s being reinforced – an indication to Joshua that the
highway patrol might be investigating something beyond a
speeding offense and an irregularity in rental papers. The
constant movement within the Pontiac would be consistent
both with heightened nervousness and with activity to get
drugs positioned where they would be hard to detect if the car
were searched.
Fact number five – at least if the dispatcher’s memory was
not playing tricks on him – is that Trooper Hannon was made
aware of Joshua’s criminal history sometime after 11:22 a.m.
The record does not show what that history was, but one can
reasonably infer that the dispatcher thought it significant
enough to merit telling Trooper Hannon about it.
Fact number six is that by 11:48 a.m. the troopers were
advised of the warning of the Portsmouth detective that
Joshua might be armed and dangerous. And fact number
seven is that as soon as it was possible to have a drug dog
sniff the Pontiac, the dog signaled that there were drugs in the
car.
All of these facts, as I say, were brought out at the
suppression hearing. In their totality, I believe, they were
sufficient to suggest that there was no deficiency in the
state’s proof – i.e., that Hensley did not require further
verification of the “Read & Sign” bulletin. Cf. Illinois v.
Gates, 462 U.S. 213, 244-45 (1983). That being so, I am not
persuaded that the failure to cite Hensley in support of the
suppression motion necessarily bespoke incompetence.
If I am wrong in this, however – and if I am wrong in my
Strickland analysis – Joshua would still not be entitled to
habeas relief if the federal exclusionary rule (made applicable
to the states in Mapp v. Ohio, 367 U.S. 643 (1961)) would
not render the evidence of Joshua’s guilt inadmissible. I do
not believe it would.

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No. 01-4118 Joshua v. DeWitt 51
The exclusionary rule was developed by the judiciary to
serve prophylactic purposes – to deter wrongdoing by those
responsible for enforcing the law. See Arizona v. Evans, 514
U.S. 1 (1995). Here there was no wrongdoing at all by the
police officers who seized the evidence; their work was
highly professional from start to finish. There is no reason to
suppose that the Columbus police officers who initially
provided the information in the “Read & Sign” bulletin were
guilty of any wrongdoing either – and there is every reason to
suppose they were not. Neither do I see any wrongdoing on
the part of the prosecutor, who, in a borderline case, elected
not to incur the expense of bringing a police officer from
Columbus to Chillicothe for the purpose of justifying a police
bulletin that appears to have been accurate. If the federal
courts are going to second-guess this kind of judgment call on
the part of state prosecutors, requiring the exclusion of vital
evidence as a result, I believe the courts will have gone far
beyond the original purpose of the exclusionary rule. That
rule rests solely on policy considerations, after all, and I can
see no sound policy reason for excluding the evidence of
Joshua’s crime under the circumstances presented here.
Finally, at the risk of belaboring the obvious, I would
reiterate that we are not reviewing the decisions of the state
courts on direct appeal. The fact that we may think the state
courts reached the wrong result is not controlling. Absent “an
unreasonable application of clearly established federal law,”
as Congress has told us in the provision codified at 28 U.S.C.
§ 2254(d), or a decision “contrary” to such law, the granting
of federal habeas relief is forbidden. I do not believe that the
decisions rendered by the state courts in the matter now
before us fail the statutory test, and I therefore believe that the
district court acted correctly in denying Joshua’s application
for the writ. My colleagues on the panel having seen the
matter differently, I respectfully dissent.

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